The Supreme Court passed up a chance Monday to consider if states can ban members of the Ku Klux Klan (search) and other groups from wearing masks at public gatherings.
Justices without comment rejected an appeal from an offshoot of the KKK whose members wear white robes, hoods and masks.
The Church of the American Knights of the Ku Klux Klan (search) had challenged as unconstitutional a New York law that allows loitering charges against someone who is "masked or in any manner disguised by unusual or unnatural attire or facial alteration."
The state's restrictions on disguised protesters date back to 1845. New York Civil Liberties Union (search) attorney Beth Haroules, representing the church and some church members, told justices that people have been allowed to demonstrate with masks before in New York without facing arrest.
"Even the most reviled members of our society are entitled to the fair and evenhanded application of the law," she wrote in the appeal.
The church describes itself as a descendant of the original Klan, and Haroules said members want to be masked "to reinforce and to convey dramatically its message of white separatism and white pride."
New York city attorney Michael Cardozo told justices that masquerade parties are acceptable, but that other events with masked people create public safety hazards. He said members can wear robes and hoods, but not masks that cover their faces.
The church had lost at the 2nd U.S. Circuit Court of Appeals in New York. "While the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so," the appeals court said in a ruling earlier this year.
The Klan members sued for the right to wear masks after a 1999 event in Manhattan in which they assembled without them.
The case is Church of the American Knights of the Ku Klux Klan v. Kelly, 04-223.